Personal Injury Statutes of Limitations: A Legal Guide

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Statutes of limitation determine how long you have to file a lawsuit. In the case of personal injury litigation, the type of injury as well as the state the injury occurred in are some of the factors used to determine the length of time you have in which to file a lawsuit. This website is intended to help you understand your state’s statute of limitations for various personal injury case types. For more information on breaking legal news, click any of the following topic names: Vioxx Heart Attack, Ortho Evra Side Effects or Guidant Defibrillator

Factors Affecting the Statutes of Limitations
Was the conduct involved intentional or negligent?
Intentional torts usually have shorter statutes of limitation than do torts involving negligent conduct.

Will the claim be based upon medical malpractice?
Over the past several years, most jurisdictions have substantially shortened the statutes of limitations applicable to medical malpractice while NOT making similar changes for cases involving other types of professional malpractice. Thus, in the very same jurisdiction, claims against attorneys, accountants, architects, or even some other types of health professionals might have longer statutes of limitation than do claims against medical doctors, dentists, or hospitals.

Does the case involve an allegedly defective product?
Many variations apply to such cases and often depend upon how long the defect existed.

Was the discovery of the injury delayed?
Often, injuries caused by toxic substances, defective drugs, and medical malpractice take months, or even years, to manifest themselves. The law usually makes allowance for such situations by providing for additional time in which to commence a law suit.

Does the case involve some governmental body or agency?
States, counties, cities, towns, villages, school districts, transportation authorities, departments of correction, parks and sanitation departments, state and municipal hospitals, law enforcement agencies, and other “municipal” entities are invariably given extraordinary protection when it comes to being sued. This may include requiring some form of written “notice of claim,” a much shorter statute of limitations than those applicable to non-governmental defendants, and immunity from certain types of law suits as well as punitive damages.

Does the claim involve a charitable organization?
In some states, charitable organizations still enjoy immunity from suit. In others, that immunity has been abolished. There are also some jurisdictions where the immunity applies to certain types of cases and not to others.

Is the plaintiff an infant or suffering from some type of disability such as insanity or mental illness?
In most jurisdictions, such conditions will “toll” statutes of limitations to some degree.

Does some other toll apply that would extend the statute of limitations?
There are other situations which act to toll statutes of limitation such as foreign objects left in the body during medical procedures.

In what jurisdiction will the action be brought?
Each state as well as Puerto Rico, Washington D.C., and the U.S. Virgin Islands have their own specific statutes of limitation which vary widely. There are also different tolls and rules involving municipalities in every jurisdiction.

What are the permissible damages?
Although the amount of damages allowable does not affect the statute of limitations, it does determine how much may be sued for, or recovered in particular situations. This might influence where an action is brought if it is possible that another jurisdiction is an available alternative. Many jurisdictions place restrictions on the amount that may be recovered from municipalities or charitable organizations, or for medical malpractice, wrongful death, or other specific types of cases. There are also many different rules which apply to punitive, or “exemplary,” damages in terms of how they are calculated, when (or if) they are permitted, and what, if any, limits apply to them.

Glossary of Terms
Definitions:

There are a number of terms herein which will be repeated frequently. The following definitions are being provided in order to assist our readers in their understanding of the information provided.

Accrual – Refers to the date on which a statute of limitations begins to run.

Cap – Refers to some limit placed on the amount that may be recovered in certain types of cases or against certain classes of defendants. It may be a specific monetary amount, an amount calculated by utilizing a particular formula, or the limit of available or required insurance coverage.

Comparative negligence – Refers to negligence or culpable conduct on the part of the injured party which usually acts to reduce his or her recovery to some extent. Different jurisdictions have different comparative negligence standards in terms of how, and to what extent, a plaintiff’s culpable conduct will affect his or her recovery.

Contributory negligence – Refers to negligence or culpable conduct on the part of the injured party which bars the injured party from any recovery regardless of the degree of the defendant’s negligence. Unlike comparative negligence, contributory negligence is not a concept that is open to varying interpretations. If the doctrine applies in a jurisdiction, it will bar a plaintiff from recovering anything. Contributory negligence is a harsh doctrine which has been abandoned in almost all jurisdictions in favor of one or another version of comparative negligence.

Disability – Refers to some condition (infancy, insanity, incompetence) which the law recognizes as a basis for allowing a statute of limitations to be tolled or extended to some degree. In all jurisdictions the disability must exist at the time the cause of action accrues in order for the injured party to be given the benefit of any tolling provision.

Discovery rule – Most jurisdictions have provisions for extending statutes of limitation in situations where the injury that has been suffered is incapable of immediate discovery. Diseases caused by exposure to toxic substances and foreign objects left in the body during medical procedures are among the situations where the rule is applied. Usually “discovery” means when the condition in question is actually discovered or when it should have been discovered with the exercise of reasonable diligence.

Foreign object – Refers to something that has been negligently left in the body during surgery or some other medical procedure. The object must usually be something that was not intended to be left in the body. Thus, a surgical instrument left in someone’s stomach is a foreign object while a prosthetic device, no matter how defective it might be, is not.

Fraud of defendant – In terms of statutes of limitation considerations this refers to conduct by a defendant which is intended to conceal his or her negligence or willful conduct with the intent of preventing the plaintiff from discovering its true nature or in an effort to have the statute of limitations run out before the plaintiff becomes aware of the wrongful conduct or the existence of an injury. Each jurisdiction has its own interpretation of what constitutes fraud on the part of a defendant as well as to what degree, if any, such conduct should have on extending or tolling the applicable statute of limitations. Fraudulent concealment of tortuous conduct usually applies in cases of professional malpractice (especially medical and dental, but also legal, engineering and architectural), products liability (including those involving prescription drugs and other pharmaceutical products), and exposure to toxic substances. Since the rules vary widely from jurisdiction to jurisdiction and are constantly being re-examined and revised as new factual situations are presented, anyone who suspects that fraud on the part of the defendant may have played a role in delaying the discovery of the tortuous conduct or the injury it may have caused is strongly urged to consult with a qualified attorney in the jurisdiction involved.

Jurisdiction – Simply refers to of the “place” or “location” where an action is brought or being litigated. Thus, this article covers the law of 53 separate jurisdictions (50 states, Puerto Rico, Washington D.C., and the U.S. Virgin Islands).

Immunity – Refers to the exemption from law suits afforded certain entities (municipalities, charitable organizations). Most jurisdictions have either abolished these exemptions completely or, at least, substantially restricted them. Some states, however, retain certain immunities or have monetary limitations beyond which recoveries are not permitted.

Intentional tort – Refers to deliberate acts which cause injury.

Municipality – The term is a generic reference to any state, county, city, town, village, or other political subdivision. It also refers to any division, agency, commission, or other department operated by the state or by any of its political subdivisions. Law enforcement agencies are usually considered “municipalities” for statute of limitations purposes.

Negligence – Refers to unintentional acts reasonable people would regard as careless or posing an unreasonable risk of harm to others.

Occurrence – Refers to the event which gives rise to a cause of action. Thus, “occurrence rule” means that the SOL involved runs from the date of the occurrence.

Punitive (exemplary) damages – These are damages which are awarded over and above simple compensatory damages. They are not intended to compensate the plaintiff. Instead, they are designed to punish the defendant for actions which are willful, wanton, reckless, or undertaken with utter disregard for their potential consequences. The goal is to discourage such actions in the future by the defendant or by others who would engage in similar conduct. While most states allow such damages, there are numerous caps, restrictions, and degrees of proof which vary from state to state. In addition, many states do not permit punitive damages to be sought or awarded against municipalities or charities. In some jurisdictions a percentage of any punitive damage award is required to be given directly to the state involved or to some agency of that state.

Statute of limitations (SOL) – Is the time in which a law suit must be commenced by the injured party. In almost all cases, unless there is some special circumstance, the SOL begins to run from the date of the occurrence that caused the injury. This is referred to as the date on which the cause of action accrued.

Statute of repose (SOR) – A statute of repose is quite different from a statute of limitations. SORs usually apply in products liability cases and are designed to limit the exposure of manufacturers and sellers. A statute of repose begins to run from some specified time or event regardless of whether any claim has accrued or any injury has occurred. Thus, a SOR may actually bar claims before they even accrue. As stated in (4 American Law of Products Liability 3d §47:55): "Unlike statutes of limitation, that are designed to prevent plaintiffs from sleeping on their legal rights to the detriment of a defendant, repose statutes applicable in products liability cases focus on the age of a product, rather than on the plaintiff's conduct. The repose period serves as an absolute barrier that prevents a plaintiff's right of action. In other words, the period of repose has the effect of preventing what might otherwise have been a cause of action from ever arising."

Tort – a “civil” wrong that entitles the injured party to recover money damages from the responsible party. A tort may be intentional (assault, battery, libel, slander, intentional infliction of emotional distress, false imprisonment, malicious prosecution), or negligent (medical malpractice, products liability, automobile accidents, slip and fall accidents, construction accidents, and any other type of unintentional accident).

Toxic substance – Refers to any material that has the potential to inflict injury through exposure (asbestos, certain molds, chemicals) or ingestion (lead paint, heavy metals, tobacco smoke).

Wrongful death – Refers to a cause of action for pecuniary loss to the estate of a person who dies as the result of the negligent or intentional act of another.

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